Law of Torts
The Defences to Defamation: Truth, Fair Comment, Absolute and Qualified Privilege, and the Malice That Destroys Them
The defences fall into three groups, and they answer three different things. Truth, or justification, answers the statement itself: the plaintiff has lost no reputation he was entitled to keep. Fair comment answers an expression of opinion: honest criticism on a matter of public interest is not actionable however wrong it is. Privilege answers neither, but protects the occasion on which the statement was made, whatever its truth or falsity. Privilege is absolute where the occasion is so important that malice is irrelevant, and qualified where malice destroys it.
Truth, fair comment and public interest; absolute and qualified privilege; and malice
1. Truth, or Justification
- Truth is a complete defence in civil law, whatever the defendant's motive in publishing. A person who publishes the truth out of spite is not liable, because the plaintiff has lost no reputation he was entitled to keep.
- The burden lies on the defendant, because falsity is presumed.
- The substantial truth of the sting is enough. Minor inaccuracies of detail do not defeat the plea where the main charge is established, and the question is whether the imputation the words conveyed was true, not whether every particular was.
- The defendant must justify the meaning the words are found to bear, including any innuendo meaning established by the plaintiff.
- A plea of justification that fails may aggravate the damages, because it repeats and persists in the charge and puts the plaintiff to the proof of his innocence.
- In criminal law truth is not enough. The first exception to section 356 of the Bharatiya Nyaya Sanhita, 2023 requires that the imputation be true and that its publication be for the public good, which is a question of fact.
2. Fair Comment
The requirement | What it means |
It must be a comment | An expression of opinion, and not an assertion of fact. The distinction is often difficult, and the test is how the words would strike a reasonable reader |
Based on true facts | The facts on which the comment is founded must be true, and must be stated or sufficiently indicated so that the reader can form his own view |
On a matter of public interest | The subject must be one in which the public has a legitimate concern, not merely one that interests the public |
Fair | Fair means honest. The test is whether an honest person could hold that opinion on those facts, however exaggerated, obstinate or prejudiced the opinion may be |
Without malice | Malice defeats the defence, because a comment made for an improper purpose is not an honest expression of opinion |
- The distinction between comment and fact is the heart of the defence. To say that a minister took a bribe is an allegation of fact requiring justification; to say that his decision was disgraceful is a comment, protected if an honest person could think so on the facts stated.
- The facts must be true, but the comment need not be right. That is what makes the defence valuable: it protects opinions the court considers wrong, unreasonable or foolish, so long as they are honestly held on a true factual basis.
- It is the defence that protects criticism, of books, films, performances, buildings, public administration and public men, and without it review and commentary would be impossible.
3. Matters of Public Interest
- The administration of justice and the conduct of public institutions.
- The conduct of government, of Ministers, of legislators and of public servants in their official capacity.
- The management of public and charitable institutions, and the conduct of those who hold themselves out as serving the public.
- Works submitted for public judgment: books, plays, films, music, performances, buildings and public exhibitions. A person who invites the public's attention invites its criticism.
- Not the private life of a private person, and not matters that are merely interesting to the public rather than in the public interest. The distinction is the one the law draws everywhere between what the public is entitled to know and what it would like to know.
4. Absolute Privilege
- Absolute privilege is a complete answer, and malice is irrelevant. No action lies however false the statement and however malicious the maker.
- Parliamentary proceedings. Articles 105(2) and 194(2) of the Constitution protect anything said or any vote given by a member in Parliament or in a State legislature or any committee of it, and protect any publication made by or under the authority of the House of a report, paper, vote or proceeding.
- Judicial proceedings. Judges, counsel, parties and witnesses are absolutely privileged in respect of statements made in the course of and having reference to the proceedings. A judge is further protected by the Judicial Officers Protection Act, 1850.
- Statements by an advocate are protected so long as they are made in the course of the proceedings and are relevant to them. The protection does not extend to remarks wholly unconnected with the case.
- Communications of State, made by one officer of State to another in the course of official duty.
- The justification for absolute privilege is not that the maker deserves protection but that the occasion does. Witnesses who feared suit would not speak freely, advocates would not put their client's case fully, and legislators would not debate without reserve.
5. Qualified Privilege
The duty and interest test A statement is protected by qualified privilege where the person who makes it has a legal, social or moral duty to make it, or an interest to protect by making it, and the person to whom it is made has a corresponding duty or interest to receive it. The reciprocity is essential. A duty or interest on one side alone will not do, and a statement made to a person with no legitimate concern in the matter is outside the privilege however honestly it was made. |
The occasion | The illustration |
A reference | A character or employment reference given by a former employer to a prospective one |
A complaint to the proper authority | A complaint about a public servant made to his superior, or about a professional to his regulatory body |
A warning | A warning given to a person with a legitimate interest in receiving it, such as a caution to a prospective business partner |
Answers to inquiries | Information given in response to a proper inquiry by a person with an interest in the answer |
Protection of one's own interest | A statement made in defence of the maker's own reputation, property or business |
Fair and accurate reports | Reports of judicial and parliamentary proceedings, published without malice, and reports of public meetings |
6. Malice, and Excess
- Malice here means an improper or indirect motive, or the absence of honest belief in what was said. It is not confined to spite.
- It destroys qualified privilege and fair comment. A statement made on a privileged occasion, but for a purpose other than the one that gave rise to the privilege, is outside the protection.
- It does not touch absolute privilege, and it does not touch truth.
- Malice may be proved from the terms of the publication itself, from its violence or extravagance, from the defendant's knowledge of falsity, or from extrinsic evidence of his motive.
- Excess defeats privilege as surely as malice. Publishing more widely than the duty or interest required takes the statement outside the occasion, so a complaint properly made to a superior officer loses its protection if it is simultaneously issued to the press.
- The burden of proving malice lies on the plaintiff, once the defendant has established the privileged occasion.
7. Consent and Apology
- Consent to the publication is a complete defence. A person who invites or authorises the publication of a statement about himself cannot complain of it.
- An apology is not a defence. It goes to the mitigation of damages, and it is frequently the most effective thing a defendant can do.
- To have real effect an apology should be prompt, full, unqualified, and given the same prominence as the original publication. A grudging apology buried at the foot of an inside page mitigates little.
- Other matters in mitigation are a retraction, publication of the plaintiff's version, provocation by the plaintiff, his existing bad reputation in the relevant sector of his life, and damages already recovered for the same publication.
⚠ Why privilege protects occasions rather than people The organising idea of the law of privilege is easily missed. It does not ask whether the defendant is a deserving person, or whether what he said was true. It asks whether the occasion on which he spoke is one the law wishes to keep free. A witness giving evidence, a legislator debating a bill, an employer answering a request for a reference, a citizen complaining to the authorities about an official: in each case the law wants the statement to be made, and knows that it will not be made freely if every speaker must be ready to justify every word in a court. The distinction between absolute and qualified privilege then follows naturally. Where the occasion is so important that even a malicious speaker must be protected in order to keep the honest one free, the privilege is absolute. Where it is important enough to protect the honest speaker but not the dishonest one, the privilege is qualified and malice takes it away. |
8. The Position Stated Shortly
1. Truth is a complete defence in civil law whatever the motive, and the burden of proving it lies on the defendant.
2. The substantial truth of the sting suffices, and a plea of justification that fails may aggravate the damages.
3. In criminal law the first exception to section 356 of the Bharatiya Nyaya Sanhita requires truth and publication for the public good.
4. Fair comment requires a comment and not an assertion of fact, based on true facts, on a matter of public interest, fairly made and without malice.
5. Fair means honest: the test is whether an honest person could hold that opinion on those facts, however exaggerated or prejudiced.
6. Absolute privilege is a complete answer and malice is irrelevant: parliamentary proceedings under Articles 105(2) and 194(2), judicial proceedings, and communications of State.
7. An advocate is protected for statements made in the course of and relevant to the proceedings.
8. Qualified privilege requires a duty or interest in the maker and a corresponding duty or interest in the recipient, and the reciprocity is essential.
9. Malice, meaning an improper motive or the absence of honest belief, destroys qualified privilege and fair comment, and excess of publication does the same.
10. Consent is a complete defence; an apology is not a defence but goes to mitigation, and is most effective when prompt, full and equally prominent.